It's Debatable: Affirmative action in college admissions

In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate the merits of affirmative action in college admissions. Rosen is the Glenn D. West Endowed Research Professor of Law at the Texas Tech University School of Law and a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston. 

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The Supreme Court has heard arguments in a case which will determine whether affirmative action criteria can still be utilized in the college admission process. The outcome in Students for Fair Admissions v. University of North Carolina, et al, may have the same seismic effect as the recent overturning of Roe v. Wade.

The issues before the Court are whether institutions of higher learning, in this instance, UNC and Harvard, can use race as a factor in college admissions, and if so, whether that violates the Equal Protection Clause in the U.S. Constitution.

The use of race related factors in any selection process is inherently discriminatory which has been pointed out by the Court eloquently on many occasions. “It is a sordid business, this divvying us by race”, said Chief Justice Roberts in 2006 decision. Justice Clarence Thomas, the prominent African American on the Court, stated it more poignantly – “Every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”

Although the use of race factors may be well-intentioned, it has led to abuse in almost every instance. As alleged by the Students for Fair Admissions (SFA), both Harvard and UNC have overtly discriminated against Asian Americans and other groups in its process of applying race related factors in the admission process. A review of the brief filed by SFA presents shocking evidence of overt discrimination that has persisted under the radar screen. As stated, “Harvard’s mistreatment of Asian-American applicants is particularly striking: Its admissions process penalizes them for supposedly lacking as much leadership, confidence, likeability, or kindness as white applicants.”

The use of such racial stereotypes in any selection process is flawed and abhorrent at every level. Critically, it is premised on the application of subjective vs objective qualifications, for example, prior academic performance, in the determination of admission suitability. The injury created is further compounded by delegating the use of such abhorrent stereotypes to admissions personnel who often harbor their own outdated prejudices. The SFA pointed out historical evidence of the destructive employment of racial criteria by Harvard which became alarmed in the early 1920’s that too many students of Jewish descent were being admitted to the University given their high-test scores. Harvard’s response was that it “preferred to state frankly” that it was “excluding all Jews beyond a certain percentage”.

Perhaps, I am a bit sensitive on this issue given my own Jewish heritage and stories recalled from my Grandfather Max Moster of his difficulty in finding a good hotel in 1930’s Miami Beach. The signs on the door said, “No Jews or Dogs Allowed”.

So, there you have it. Using racial criteria and setting up false categorizations based on ethnicity is inherently flawed and discriminatory. I am hopeful that the Supreme Court will ban the further use of these race related factors in the college admissions process.

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In Grutter v. University of Michigan (2003), the Supreme Court held that achieving a diverse student body in higher education is a compelling governmental interest, and to achieve diversity, colleges may consider race in individualized admission determinations, but they may not use mechanical measures (such as quotas and set asides) to benefit specified minorities. The Court also held that any racial classification, even when it disadvantages whites, is subject to strict scrutiny. In two cases currently before the Court—one against Harvard and the other against the University of North Carolina (“UNC”)—the Court may overrule Grutter and forbid colleges and universities from considering race as a factor in admissions. This would be a mistake.

First, diversity is critically important. To paraphrase a Harvard study cited by the Court of Appeals for the First Circuit: “To fulfill their civic and other responsibilities, [college] graduates cannot be blind either to the challenges facing our increasingly pluralistic country or to the unresolved racial divisions that stubbornly persist despite decades of substantial efforts to resolve them…. [S]tudent body diversity encourages students to examine ways of processing the world dissimilar to their own and that through classroom discussion with others one learns to negotiate pluralism.”

Second, in an early decision addressing the Equal Protection Clause, the Supreme Court stated that the Amendment’s purpose was to end the “gross injustice and hardship” of discrimination against the newly freed slaves. Later decisions found that the Amendment reached the “badges and incidents” of slavery, which shamefully still exist. For example, many Black students are deprived access to quality primary and secondary school resources. Thus, they start the college application process at a competitive disadvantage, which colleges may consider in making admission decisions.

Third, consideration of race is very narrow—one factor among all aspects of an applicant’s background. It cannot be determinative. At UNC “race only rarely plays a meaningful role—explaining a mere 1.2% of admissions decisions.” But

even with affirmative action, Black students only constitute 8% of UNC’s undergraduates while Blacks comprise 22% of the state’s population. With respect to Harvard, after a 15-day trial, the district court found no evidence that the University intentionally discriminated against the plaintiffs.

Fourth, the Supreme Court has not required affirmative action in higher education, and colleges need not consider race in admissions. Indeed, the people of California and Michigan approved state constitutional amendments prohibiting such affirmative action.

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I find Rick’s logic curious and contradictory. I certainly understand the goal of achieving a pluralistic society and adhere to the same aspirations. However, the utilization of discriminatory criteria which gerrymanders college admissions based on racial stereotypes is reminiscent of apartheid, not pluralism.

The evidence presented by the SFA establishes empirical proof that Asian-Americans have been artificially screened out of the admissions pool at Harvard and UNC to make way for other students who maintained lower test scores. I cannot imagine what positive civic value such outright discrimination serves and welcome Rick’s rejoinder.

Studies proffered by other groups buttress the conclusion that discrimination is rampant – Asian-American have lower acceptance rates notwithstanding test scores 140 points higher than Caucasian students, 270 points higher than Hispanic students, and 450 points higher than African American students (Espenshade – 2009); Percentage admissions of Asian-Americans at Harvard peaked at 20% in 1993 then artificially declined by 3-5% despite the fact that this population doubled (Unz – 2012).

Daniel Golden in his book, The Prices of Admission, How America’s Ruling Class Buys its Way into Elite Colleges – and Who Gets Left Outside, compares the treatment of Asian-Americans to the discriminatory practice of Harvard towards Jewish students in the 1930’s, previously discussed. The admissions personnel at these elite universities harbored the ugliest racial stereotypes which vastly reduced the percentage acceptance rate of Jewish students notwithstanding stellar credentials. Sound familiar?

Justice Thomas is correct in his assessment that the use of racial criteria “demeans us all”. It presupposes that there are differences in intelligence based on racial stereotypes which are erroneous and dangerous. Notwithstanding disparities in education and socio-economic status, students with the greatest motivation will rise to the top. That’s everyone – black, white, native Americans, Hispanic, and Asian-Americans.

Let’s celebrate pluralism by treating all students equally.

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Charles would delete race from college applications. But race defines the personal stories of many prospective students. The nation is barely a generation away from “Jim Crow,” and its effects are still profound. As the College Board’s amicus brief stated: “[E]xcluding race and ethnicity as the only parts of a student’s life that could not be considered in holistic review would deny students of any race, for whom race has been a significant influence in their lives, the opportunity to relay the story of who they are and how they see and experience the world.” The Court itself noted: “Just as growing up in a particular region or having particular professional experiences is likely to affect an individual’s views, so too is one’s own, unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters.”

Charles asserts the plaintiffs “establish[ed] empirical proof that Asian-Americans have been artificially screened out of the admissions pool at Harvard and UNC to make way for other students who maintained lower test scores.” In fact, they did not prove any such thing. After a 15-day trial, the Massachusetts district court found the evidence did not show that Harvard intentionally discriminated against the plaintiffs, a decision affirmed by the appellate court.

The plaintiffs’ case is based in part on Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination in educational programs receiving federal funding, and is co-extensive with the Equal Protection Clause. (As a non-state actor, Harvard is not subject to the Clause.) Congress could—at any time—amend Title VI to prohibit the consideration of race in admissions, but it hasn’t. Clearly, Congress does not yet believe Grutter was incorrectly decided.

Finally, I share Charles’ discomfort with affirmative action in these cases because Asian-Americans have been subjected to both de facto and de jure discrimination since the 19th Century. Moreover, like Charles’ grandparents, I am Jewish and I have experienced overt discrimination. Nevertheless, I agree with the Anti-Defamation League, a Jewish organization that “found that a diverse educational environment challenges all students to explore new ideas, perspectives, and experiences that they might not otherwise explore, to see issues from other points of view, to rethink their own assumptions and prejudices, and to achieve the kind of understanding that comes only from testing their own hypotheses against those of people with other or differing beliefs.”

This article originally appeared on Lubbock Avalanche-Journal: It's Debatable: Affirmative action in college admissions